By Cristin Schmitz January 27 2012 issue
A Charter challenge aiming to pave the way for foreign
domiciled same-sex couples who married here to obtain Canadian divorces
has opened up a can of legal worms, says a family law expert.
However, the federal government’s rapid about-face on Jan. 13 in
L. and M. v. A.G. Canada and A.G. Ontario also illustrates that, sometimes, the court of public opinion is the highest court in the land.
“Not
all cases have to be fought out in the courtroom,” remarked Toronto
family law practitioner Martha McCarthy, who represents a married
lesbian couple who live abroad and have filed jointly for divorce in
Canada.
“I think that Kirk Makin’s article [about the case in
The Globe and Mail
Jan. 12] was instrumental in changing the government policy and
therefore, hopefully, leading to a total resolution of my [clients’]
case.”
She said she was contacted by the newspaper, and not the
other way around. “There was not some deep strategy in my office about
that — that’s not how it happened. My reaction when the [federal
Crown’s] pleading was served was: ‘This is a horrible mistake and, if
and when the press gets a hold of this, this is not going to go well for
the government.’ ”
L. and M. were married in Toronto in 2005.
They turned to Ontario’s Superior Court last year to dissolve their
union because they reside separately in Britain and Florida, where they
can’t divorce because neither jurisdiction recognizes their marriage.
As
part of their test case, the pair is seeking a constitutional exemption
from the one-year Canadian residency requirement in the
Divorce Act
because they claim it imposes undue hardship on them and violates their
Charter sections 7 and 15 rights to liberty and equality.
They
were shocked, however, when the federal government responded to their
application by stating that the Ontario court couldn’t divorce them
because they were never really married in the first place. If true, this
would also apply to the thousands of foreign same-sex partners who have
flocked to Canada to marry.
McCarthy condemns as “unsavoury and
inflammatory” the argument that other experts have said is consistent
with well-established principles of private international law. The
federal Crown argued that same-sex couples who married in Canada, but
who are domiciled in places where same-sex marriage is not legally
recognized, “are not legally married under Canadian law.”
Its legal position prompted headlines, and outraged reactions from gays and lesbians, around the world.
Within
hours of the story’s publication, Justice Minister Rob Nicholson began
backpedaling. He went further the next day, stating: “We want to make it
very clear that, in our government’s view, these marriages should be
valid.”
He went on to vow that “we will change the
Civil Marriage Act
so that any marriages performed in Canada that aren’t recognized in the
couple’s home jurisdiction will be recognized in Canada. This will
apply to all marriages performed in Canada.”
Nicholson’s spokeswoman, Julie Vaux, told
The Lawyers Weekly that the minister “will be looking at options to clarify the law so marriages performed in Canada can be undone in Canada.”
She declined to disclose specifics. The Department of Justice lawyer who represented the Crown in
L. and M., Sean Gaudet, was not authorized to comment.
However, McCarthy told
The Lawyers Weekly
she received correspondence from Gaudet on Jan. 17, asking her clients
to wait for the enactment of the pledged legislative reforms. She said
her sense is that the amendments will be unveiled soon after the House
of Commons resumes sitting on Jan. 30.
“If that’s not the way it
goes, I am going to want to have some discussions [with the attorney
general’s counsel], because I don’t think my clients should wait a long
time,” she said. “I have had discussion with senior members of Cabinet
and have been assured that they intend to resolve my matter, in addition
to the greater legal issue, on an amicable and expedited basis.”
McCarthy
said a settlement might involve a consent order constitutionally
exempting her clients from the one-year residency requirement, as well
as withdrawal of the government’s answer that contains the “offensive
argument.”
Based on Nicholson’s public comment that the impugned
marriages “will be recognized in Canada,” a legislative fix would
likely address the feds’ argument in
L. and M. that “the
Superior Court has no jurisdiction to grant a divorce to the joint
applicants because they are not legally married under Canadian law.”
As
the government explained in its answer to L. and M.’s application,
under private international law “in order for a marriage to be legally
valid under Canadian law, the parties to the marriage must satisfy both
the requirements of the law of the place where the marriage is
celebrated (the
lex loci celebrationis) with regard to the
formal requirements, and the requirements of the law of domicile of the
couple with regard to their legal capacity to marry one another. In this
case, neither party had the legal capacity to marry a person of the
same sex under the laws of their respective domicile — Florida and the
United Kingdom. As a result, their marriage is not legally valid under
Canadian law.”
A leading divorce authority, Julien Payne of Ottawa, told
The Lawyers Weekly
that, notwithstanding the public controversy, the Crown’s argument is
“certainly consistent with the general rules” of private international
law. “What the Department of Justice said is not novel. It’s not a
creation of their imagination It reflects the law as it’s understood by
basically everybody who writes in the field. That’s not to say those
rules can’t be changed, although any change is going to generate
problems of one kind or another.”
The problem of divorce for non-resident same-sex couples could have been dealt with when the
Civil Marriage Act was passed in 2005, he suggested.
He
said the problems would not have arisen in the first place if Canada
had confined its recognition of same-sex marriages to persons domiciled
in Canada.
Payne also suggested “it might be somewhat problematic” to create a special rule under the
Divorce Act
exempting same-sex married couples, but not opposite-sex couples, from
the one-year residency requirement. Moreover, eliminating the residency
requirement could create a divorce haven for foreigners, Payne said.
McCarthy
said she doesn’t anticipate that. “I think the amendments that we are
talking about are about the dissolution of the marriage. I think it’s
pretty simple to draft an amendment, or an additional provision, for the
Civil Marriage Act that just allows for dissolution, but
doesn’t specifically allow for corollary relief. Nobody is suggesting
that this is going to be [opening the door to] bitter divorces involving
custody disputes and property in other countries.”
http://www.lawyersweekly.ca/index.php?section=article&volume=31&number=35&article=1
http://www.lawyersweekly.ca/index.php?section=article&volume=31&number=35&article=1